In Re: Ohio Execution Protocol Litigation

Filing 1557

DECISION AND ORDER DENYING MOTION TO DISMISS VOLUNTARILY WITHOUT PREJUDICE 1470 . Signed by Magistrate Judge Michael R. Merz on 4/12/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: OHIO EXECUTION
PROTOCOL LITIGATION,
:

Case No. 2:11-cv-1016
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

This Order relates to Plaintiff
Siddique Abdullah Hasan, fka
Carlos Sanders

DECISION AND ORDER DENYING MOTION TO DISMISS
VOLUNTARILY WITHOUT PREJUDICE

This capital § 1983 case is before the Court on Motion of Plaintiff Siddique Abdullah
Hasan for Voluntary Dismissal Without Prejudice pursuant to Fed. R. Civ. P. 41(a)(2)(ECF No.
1470). Consulted pursuant to S. D. Ohio Civ. R. 7.3, Defendants’ counsel “takes no position and
commends the request to the sound discretion of this Court.” Id. at PageID 56059.
Hasan argues dismissal without prejudice is appropriate unless the defendant would
suffer plain legal prejudice, citing Grover v. Eli Lilly & Co., 33 F.3d 716, 718 (6th Cir. 1994). Id.
The Sixth Circuit has elaborated on the factors to be considered in determining whether a
defendant would suffer plain legal prejudice from dismissal without prejudice:
In determining whether a defendant will suffer "plain legal
prejudice," a court should consider such factors as "the defendant's
effort and expense of preparation for trial, excessive delay and lack
1

of diligence on the part of the plaintiff in prosecuting the action,
insufficient explanation for the need to take a dismissal, and
whether a motion for summary judgment has been filed by the
defendant."
Rosenthal v. Bridgestone/Firestone, Inc., 217 Fed. App’x 498, 502 (6th Cir. 2007), quoting
Grover, supra. The Rosenthal court confirmed that whether to grant dismissal under Rule
41(a)(2) is within the sound discretion of the district court. Id. at 500, also citing Grover.
Litigation under 42 U.S.C. § 1983 to challenge Ohio’s method of execution has been
pending in this District since shortly after the Supreme Court recognized the cognizability of
such claims under § 1983 in Nelson v. Campbell, 541 U.S. 637 (2004). See Cooey v. Kasich, 1
Case No. 2:04-cv-1156(filed December 8, 2004, and consolidated with this case when it was
filed in 2011, ECF No. 2). Hasan has been a plaintiff in this consolidated case since its inception
(ECF No. 4). These cases were assigned to District Judge Gregory Frost from their initial filing
until his retirement in May 2016 when they were randomly reassigned to Chief Judge Edmund
A. Sargus, Jr. They have been referred to the undersigned Magistrate Judge since September 15,
2015 (see Notation Order of that date). Consolidation of § 1983 method-of-execution litigation
in this case was part of Judge Frost’s case management plan.
There has never been a trial in either case. The Cooey case was scheduled for summary
judgment practice in 2009, but the schedule was interrupted by repeated preliminary injunction
proceedings related to imminent executions. Already in 2009 the delay in bringing the case to
judgment caused Judge Frost considerable frustration (Case No. 2:04-cv-1156, ECF No. 616,
PageID 13431). Of course, the changes Ohio has made to both the text and administration of its
execution protocol have properly occasioned amendments to the Complaint.

1

Originally captioned Cooey v. Taft. The caption has been amended as first Ted Strickland and then John Kasich
succeeded Robert Taft as Governor of Ohio.

2

On July 31, 2017, the Court entered a scheduling order designed to deal comprehensively
with the case, including setting dates for filing of a fourth amended omnibus complaint and for
summary judgment practice (ECF No. 1128).

The Fourth Amended Omnibus Complaint,

consisting of forty-seven claims for relief and 485 pages, was then filed on September 22, 2017
(ECF No. 1252). That pleading is the subject of a sixty-page Report and Recommendations filed
February 22, 2018 (ECF No. 1429) and pending on objections by both parties and recommittal
by Chief Judge Sargus (ECF Nos. 1450, 1452, 1457, 1459). The Court has also set a summary
judgment deadline of May 31, 2018 (ECF No. 1267).
Plaintiff Hasan is one of five inmates at the Southern Ohio Correctional Facility
sentenced to death as a result of murders that occurred during a riot at that prison in April 1993,
twenty-five years ago this month. Hasan filed his Petition for habeas corpus relief from that
conviction and sentence on April 22, 2003 (Case No. 1:03-cv-288). As with all capital habeas
actions filed in the Western Division of this Court, it was referred to the undersigned upon filing.
Dispositive Reports and Recommendations in that case were filed in 2010, but ripeness for final
judgment has been delayed by extensive discovery. Attorney Nolan, who filed the instant
Motion to Dismiss, notes that he has come late to the Hasan habeas litigation, having been
substituted for Attorney Laurence Komp only on September 6, 2017. As grounds for the Motion
to Dismiss, however, he avers that his “efforts are better spent in support of the pending habeas
petition.” (ECF No. 1470, PageID 56059.)
The effect of allowing Hasan to dismiss voluntarily at this point in time would be that,
having been in the case since 2011, he would escape any preclusive effect from decision on the
pending Defendants’ Motion to Dismiss and from having to litigate the summary judgment

3

motion or motions which will be filed within the next sixty days. 2 The parties and the Court
have already spent considerable time on the Motion to Dismiss and it will be ripe on recommittal
on April 16, 2018. At least as to this one Plaintiff, Defendants would lose the benefit of that
work and he would be in a position to reassert later claims which are now ripe for decision.
Moreover, although Attorney Nolan is new to representing Hasan and to this case,
Plaintiffs generally have been vigorously represented throughout this case by experienced Ohio
capital litigators with the Ohio Public Defender’s Office and the Capital Habeas Units of both
the Northern and Southern District Federal Defenders Offices. The interests of the Plaintiffs are
not identical, but they have almost all their interests in common.
Based on the circumstances recited, the Court finds the Defendants would be prejudiced
by allowing Hassan to dismiss without prejudice. Accordingly, the Motion is DENIED.

April 12, 2018.
s/ Michael R. Merz
United States Magistrate Judge

2

Assuming the parties adhere to the currently extant schedule.

4